Charles E. Keyes v. ERIC K. SHINSEKI, Secretary of Veterans Affairs

NOTE: This order is nonprecedential.

# United States Court of Appeals for the Federal Circuit

2008-7108

CHARLES E. KEYES,

Claimant-Appellant,
V.

ERIC K. SHINSEKI, Secretary of Veterans Affairs,

Respondent-Appellee.

Appeal from the United States Court of Appeals for Veterans Claims in 04-0487,
Judge Mary J. Schoelen.

Before MICHEL, Chief Judge, SCHALL and LINN, Circuit Judges.
SCHALL, Circuit Judge.

## ORDER

The Secretary of Veterans Affairs responds to the court's November 5, 2008
order and moves to dismiss Charles E. Keyes' appeal.

The briefing schedule in this appeal was stayed pending this court's disposition
of Vazquez-Flores v. Shinseki, 2008-7150 and Schultz v. Shinseki, 2008-7115. In the
present case, the United States Court of Appeals for Veterans Claims affirmed the
Board of Veterans' Appeals decision that the Department of Veterans Affairs provided
Keyes with sufficient notice under the Veteran Claims Assistance Act of 2000 in denying
Keyes an initial disability rating.

In his brief appeal, Keyes relies on the Court of Appeals for Veterans Claims'
decision in Vasquez-Flores v. Peake, 22 Vet.App. 37 (2008). In that decision, the Court
of Appeals for Veterans Claims held that when a veteran seeks an increased disability
rating, the Department of Veterans Affairs must provide the veteran with specific notice

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of the relevant rating criteria for every diagnostic code potentially applicable to the
veteran and must also consider the effect the veteran's worsened disability has on his
or her daily life in making its determination. On September 4, 2009, this court reversed
the Court of Appeals for Veterans Claims and held that a veteran need not be provided
with specific notice and that "daily life" evidence need not be required for proper claim
adjudication. Vazquez Flores v. Shinseki, 580 F.3d 1270, 1281 (Fed. Cir. 2009).

Because the only issue over which we would have jurisdiction is clearly resolved
by our recent decision in Vazquez-Flores, summary affirmance of the Court of Appeals
for Veterans Claims' judgment is appropriate. Joshua v. United States, 17 F.3d 378, 380
(Fed. Cir. 1994) (summary affirmance of a case "is appropriate, inter alia, when the
position of one party is so clearly correct as a matter of law that no substantial question
regarding the outcome of the appeal exists").

Accordingly,

IT IS ORDERED THAT:

(1)
The Secretary's motion to dismiss is denied.

(2)
The judgment of the Court of Appeals for Veterans Claims is summarily
affirmed.

(3)
Each side shall bear its own costs.

FOR THE COURT

DEC 1 7 2009

Date

cc:
Hugh D. Cox, Jr., Esq.
Claudia Burke, Esq.

s20

/s/ Jan Horbaly
Jan Horbaly
Clerk

PILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT

DEC 17 2009
JAN HORBALY
CLERK

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